The 'Voting Rights Act of 1867': The Constitutionality of Federal Regulation of Suffrage During Reconstruction

Abstract

As part of the process of readmitting the former Confederate states to representation in the House and Senate, Congress required those states to grant broad, race-neutral access to the ballot, enfranchising "male citizens, twenty-one years old and upward, of whatever race, color or previous condition of servitude, except such as may be disenfranchised for participation in rebellion or for felony at common law." Through the Military Reconstruction Act and its implementing legislation, Congress established the fundamental condition that this suffrage provision could never be narrowed by future state law. By establishing a broad class of citizens entitled to vote, this condition was designed to prevent states from disenfranchising African Americans through clever strategems. On the assumption that the fundamental condition was unconstitutional, the Southern states disenfranchised African Americans anyway, enacting grandfather clauses, literacy tests and poll taxes that violated the fundamental condition.

This paper argues that Military Reconstruction was constitutional, as was (and is) the fundamental condition. The fundamental condition was criticized as violating the principle of "equality of states" as set forth in cases like Coyle v. Smith. However, equality of states is not an equal protection clause for states; it is perfectly constitutional for one state to get a lucrative military base, another to get a waste storage site, and a third to get nothing. Equality of states has been interpreted by the Court to prohibit only regulation of states which is beyond the power of Congress. The fundamental condition is within the power of Congress to make war, suppress insurrection and guarantee a republican form of government. The paper concludes by pointing to some of the evidence that the former Confederate states targeted African Americans by expanding criminal disenfranchisement to various felonies and misdemeanors thought to be committed more often by African Americans, and suggests that the letter and spirit of the fundamental condition now prohibits these states from disenfranchising persons convicted of crimes other than common law felonies, such as murder, rape and robbery.

Chin, Gabriel Jackson, The 'Voting Rights Act of 1867': The Constitutionality of Federal Regulation of Suffrage During Reconstruction. North Carolina Law Review, Vol. 82, 2004. Available at SSRN: https://ssrn.com/abstract=589301